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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6691 OF 2005

State of West Bengal & Ors.        … Appellants  

Versus

Associated Contractors                          … Respondent

WITH

CIVIL APPEAL NO. 4808 OF 2013

J U D G M E N T

R.F. Nariman, J.

1. This  matter  has  come before  a  three  Judge  Bench  by an  order  of  

reference of a Division Bench of this Hon’ble Court dated 7th April, 2010.  

The referral order reads thus:

“In  this  appeal,   the    question       that    arises     for   decision       is     which     Court      will     have     the   jurisdiction   to   entertain  and  decide  an  application  under   Section  34  of  the  Arbitration  and  Conciliation  Act,  1996   (hereinafter  for short 'the Act').

2.      Mr.    Bikas    Ranjan  Bhattacharya,  learned  senior   counsel appearing for the appellants cited the judgments in the   

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case  of  National  Aluminium  Co.  Ltd.  Vs.  Pressteel  &   Fabrications  (P)  Ltd.  And  Anr.  (2004)  1  SCC  540,  Bharat   Coking Coal Ltd. Vs. Annapurna Construction (2008) 6 SCC  732, Bharat Coking Coal Ltd. Vs. H.P. Biswas and Company   (2008) 6 SCC 740 and Garhwal Mandal Vikas Nigam Ltd. Vs.   Krishna  Travel  Agency (2008)  6 SCC 741 in support  of  his   submission that it is only the Principal Civil Court, as defined   in Section 2(e) of the Act, which can entertain and decide   an   application      under       Section    34   of     the   Act   for   setting aside the Award.

3.       Mr. Pradip Ghosh, learned senior counsel appearing for   the respondent on the other hand submitted that in the present   case  the  Calcutta  High  Court  exercising  jurisdiction  under   Clause 12 of the Letters Patent had passed an interim order   under  Section  9  of  the  Act  before  commencement  of  the   arbitration proceedings and by virtue of Section 42 of the Act,   it is only the Calcutta High Court which will have jurisdiction   to entertain and decide an application under Section 34 of the   Act for setting aside the Award. In support of his submission,   he relied  upon judgment  of  this  Court  in  the case  of  Jindal   Vijaynagar Steel (JSW Steel Ltd.) Vs. Jindal Praxair Oxygen   Co. Ltd. (2006) 11 SCC 521.

4.   We    have   perused    the    decisions     cited     by   learned counsel for the parties, which are all decisions of two   Judges  Bench.    In  our opinion,  the law has  to  be clarified   beyond doubt as to which Court will have the jurisdiction to   entertain and decide an application for setting aside the Award   under  Section 34 of the Act read with Section 2(e) of the Act   and  other  provisions,  including Section  42 of  the  Act.   We,   therefore,  refer  the matter  to a larger  Bench to  decide this   question of law.

5.     Let    the   papers    of     this   case    be     placed   before   Hon'ble  the  Chief  Justice  for  constituting  an  appropriate   Bench.

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6.    Till  the  disposal  of  the  appeal  by  a  larger  Bench,  the   interim    order    dated       17.05.2007      shall    continue     to   operate.”

                     2. The facts necessary to decide this matter are as follows:

In  1995-96  an  Item  Rate  Tender  was  duly  executed  and  signed  

between  the  respondent  Associated  Contractors  and  the  concerned  

Superintending Engineer for execution of the work of excavation and lining  

of  Teesta-Jaldhaka Main Canal  from Chainage 3 Kms.  to 3.625 Kms.  in  

Police Station: Mal, District: Jalpaiguri, West Bengal. Para 25 of the said  

Item Rate Tender and Contract contained an arbitration clause.  

3. The  respondent  herein  filed  an  application  under  Section  9  of  the  

Arbitration Act, 1996 for interim orders in the High Court of Calcutta.  A  

learned Single  Judge of  the High Court  of  Calcutta,  after  granting leave  

under  Clause  12  of  the  Letters  Patent,  passed  an  ad-interim  ex-parte  

injunction order.  This order was continued from time to time until it was  

confirmed  by  an  order  dated  10th December,  1998.   Meanwhile,  in  an  

application under Section 11 of the Arbitration Act, Justice B.P. Banerjee  

(retired),  was  appointed  as  an  Arbitrator  to  adjudicate  upon the  disputes  

between  the  parties.   A  Recalling  Application  filed  by  the  State  was  

dismissed on 20th January, 2000.   

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4. An appeal  was  filed  against  the  order  dated  10th December,  1998,  

confirming the ad-interim ex-parte injunction.  On 5th July, 2000, delay in  

filing the appeal was condoned and on 20th July, 2000, the interim order was  

stayed  by  the  Division  Bench.   The  Arbitrator  was,  however,  asked  to  

complete the proceedings before him which would go on uninterrupted.  

5. Meanwhile, several orders were passed by the High Court regarding  

remuneration of the Arbitrator and payment of the same.  The arbitration  

proceedings culminated in an Award dated 30th June,  2004 by which the  

claimant was awarded a sum of Rs.2,76,97,205.00  with 10% interest from  

1st July, 1998 till the date of the Award. If not paid within four months, the  

same would then attract interest at the rate of 18% per annum.  Costs were  

also  awarded  in  the  sum  of  Rs.50,000/-.   The  counter  claims  of  the  

respondent were rejected.  

6. On  21st September,  2004,  the  State  of  West  Bengal  filed  an  

application under Section 34 of the 1996 Act to set aside the arbitral Award  

before the Principal Civil Court of the learned District Judge at Jalpaiguri,  

West Bengal.  On 6th October, 2004, the learned District Judge at Jalpaiguri  

issued notice to the other side directing the respondent to appear and file its  

written objections on or before 4th January, 2004.  On 10th December, 2004,  

the respondent  filed an application under Article  227 of  the Constitution  

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challenging  the  jurisdiction  of  the  court  of  the  learned  District  Judge  at  

Jalpaiguri.    By the impugned judgment dated 11th April,  2005, a Single  

Judge of the High Court of Calcutta allowed the petition under Article 227  

holding:

“Accordingly,  I  hold  that  since  the  parties  already  had   submitted  to  the  jurisdiction  of  this  Court  in  its  Ordinary   Original Civil jurisdiction in connection with different earlier   proceedings  arising  out  of  the  said  contract,  as  indicated   above, the jurisdiction of the court of the learned District Judge   at Jalpaiguri to entertain the said application for setting aside   of the award was excluded under Section 42 of the said Act.   Thus,  I  find  that  this  Court  in  its  Ordinary  Original  Civil   Jurisdiction  is  the  only  court  which  can  entertain  an   application for setting aside the said award.  The Revisional   Application,  thus,  stands  allowed.   The  impugned  notice  is,   thus, quashed.”  

7. In  an  S.L.P.  filed  against  this  order,  Mr.  Anip  Sachthey,  learned  

advocate for the State of West Bengal, argued that since the application itself  

made under Section 9 was without jurisdiction, Section 42 of the Arbitration  

Act would not be attracted.  He argued that the reason the Division Bench  

stayed  the  interim  order  passed  under  Section  9  was  because  it  was  

convinced prima facie that the High Court had no territorial jurisdiction in  

the matter.   

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8. Mr.   P.K.  Ghosh,  learned  senior  advocate  for  the  respondent,  

contended that Clause 12 leave had already been granted and a number of  

orders have been passed after the ad-interim ex-parte order dated 22nd July,  

1998 by the learned Single Judge of the High Court.  There is, in fact, no  

order of any court which has pronounced upon jurisdiction, and therefore,  

Section 42 would necessarily apply to the facts of the case.  

9. As  the  matter  has  been  referred  to  us  for  an  authoritative  

pronouncement on Section 2(1)(e) and Section 42 it will be important to set  

out Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 which read  

as follows:

“2(1)(e) “Court” means the principal Civil Court of original   jurisdiction  in  a  district,  and  includes  the  High  Court  in   exercise  of  its  ordinary  original  civil  jurisdiction,  having   jurisdiction to decide the questions forming the subject-matter   of the arbitration if the same had been the subject-matter of a   suit, but does not include any civil court of a grade inferior to   such principal Civil Court, or any Court of small Causes.

42.   Jurisdiction  –  Notwithstanding  anything  contained   elsewhere in this Part or in any other law for the time being in   force,  where  with  respect  to  an  arbitration  agreement  any   application  under  this  Part  has  been made in  a  Court,  that   Court  alone  shall  have  jurisdiction  over  the  arbitral   proceedings and all subsequent applications arising out of that   agreement and the arbitral proceedings shall be made in that   Court and in no other Court.”

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10. Section 2(1)(e) had its genesis in Section 2(c) of the 1940 Act. Section  

42 had its genesis in Section 31(4) of the 1940 Act.  These sections of the  

1940 Act read as follows:

“2(c)  "Court"  means  a  Civil  Court  having  jurisdiction  to   decide  the  questions  forming  the  subject-  matter  of  the   reference if the same had been the subject- matter of a suit, but   does  not,  except  for  the  purpose  of  arbitration  proceedings   under section 21, include a Small Cause Court;

31(4) Notwithstanding anything contained elsewhere in this Act   or in any other law for the time being in force, where in any   reference  any  application  under  this  Act  has  been  made  in   a Court competent to entertain it, that Court alone shall have   jurisdiction  over  the  arbitration  proceedings-,  and  all   subsequent applications arising, out of that reference, and the   arbitration proceedings shall be made in that Court and in no   other Court.”  

11. It will be noticed that Section 42 is in almost the same terms as its  

predecessor Section except that the words “in any reference” are substituted  

with the wider expression “with respect to an arbitration agreement”. It will  

also be noticed that the expression “has been made in a court competent to  

entertain it”, is no longer there in Section 42. These two changes are of some  

significance  as  will  be  pointed  out  later.  Section  42  

starts with a non-obstante clause which does away with anything which may  

be inconsistent with the Section either in Part-I of the Arbitration Act, 1996  

or in any other law for the time being in force. The expression “with respect  

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to an arbitration agreement” widens the scope of Section 42 to include all  

matters  which  directly  or  indirectly  pertain  to  an  arbitration  agreement.  

Applications  made  to  Courts  which  are  before,  during  or  after  arbitral  

proceedings made under Part-I of the Act are all covered by Section 42. But  

an essential ingredient of the Section is that an application under Part-I must  

be made in a court.  

12. Part-1 of the Arbitration Act, 1996, contemplates various applications  

being  made  with  respect  to  arbitration  agreements.   For  example,  an  

application under Section 8 can be made before a judicial authority before  

which an action is brought in a matter which is the subject of an arbitration  

agreement.  It is obvious that applications made under Section 8 need not be  

to courts, and for that reason alone, such applications would be outside the  

scope of Section 42.  It was held in P. Anand Gajapathi Raju & Ors. v.  

P.V.G. Raju (Dead) & Ors., (2000) 4 SCC 539 at para 8  that applications  

under Section 8 would be outside the ken of Section 42. We respectfully  

agree, but for the reason that such applications are made before “judicial  

authorities” and not “courts” as defined. Also, a party who applies under  

Section 8 does not apply as dominus litis, but has to go wherever the `action’  

may have been filed.  Thus, an application under Section 8 is parasitical in  

nature - it has to be filed only before the judicial authority before whom a  

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proceeding is filed by someone else. Further, the “judicial authority” may or  

may not be a Court. And a Court before which an action may be brought  

may not be a Principal Civil Court of original jurisdiction or a High Court  

exercising  original  jurisdiction.   This  brings  us  then  to  the  definition  of  

“court” under Section 2(1)(e) of the Act.

13. It will be noticed that whereas the earlier definition contained in the  

1940  Act  spoke  of  any  civil  court,  the  definition  in  the  1996  Act  fixes  

“court” to be the Principal Civil Court of original jurisdiction in a district or  

the High Court in exercise of its ordinary original civil jurisdiction.  Section  

2(1)(e) further goes on to say that a court would not include any civil court  

of a grade inferior to such Principal Civil Court, or a Small Causes Court.  

14. It will be noticed that the definition is an exhaustive one as it uses the  

expression “means and includes”.  It is settled law that such definitions are  

meant to be exhaustive in nature – See  P. Kasilingam & Ors. v. P.S.G.  

College of Technology & Ors., (1995) Suppl. 2 SCC 348 at para 19.

15. A  recent  judgment  of  this  Hon’ble  Court  reported  in  Executive  

Engineer, Road Development Division No. III, Panvel & Anr. v. Atlanta  

Limited,  AIR  2014  SC  1093  has  taken  the  view  that  Section  2(1)(e)  

contains a scheme different from that contained in Section 15 of the Code of  

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Civil Procedure.  Section 15 requires all suits to be filed in the lowest grade  

of court.  This Hon’ble Court has construed Section 2(1)(e) and said that  

where  a  High  Court  exercises  ordinary  original  civil  jurisdiction  over  a  

district, the High Court will have preference to the Principal Civil Court of  

original jurisdiction in that district.  In that case, one of the parties moved an  

application under Section 34 before the District Judge, Thane.  On the same  

day,  the  opposite  party  moved  an  application  before  the  High  Court  of  

Bombay for setting aside some of the directions contained in the Award.  In  

the circumstances, it was decided that the “Court” for the purpose of Section  

42 would be the High Court and not the District Court.  Several reasons were  

given for this.  Firstly, the very inclusion of the High Court in the definition  

would be rendered nugatory if the above conclusion was not to be accepted,  

because  the  Principal  Civil  Court  of  original  jurisdiction  in  a  district  is  

always a court lower in grade than the High Court, and such District Judge  

being lower in grade than the High Court would always exclude the High  

Court from adjudicating upon the matter.  Secondly, the provisions of the  

Arbitration Act leave no room for any doubt that it is the  superior most  

court exercising original jurisdiction which has been chosen to adjudicate  

disputes arising out of arbitration agreements. We respectfully concur with  

the reasoning contained in this judgment.  

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16. Similar is the position with regard to applications made under Section  

11 of  the  Arbitration  Act.   In  Rodemadan India  Ltd.  v.  International  

Trade Expo Centre Ltd., (2006) 11 SCC 651, a Designated Judge of this  

Hon’ble Court following the seven Judge Bench in S.B.P. and Co. v. Patel  

Engineering Ltd. & Anr.,   (2005) 8 SCC 618,  held that instead of the  

court, the power to appoint arbitrators contained in Section 11 is conferred  

on the Chief Justice or his delegate. In fact, the seven Judge bench held:

“13.  It  is  common  ground  that  the  Act  has  adopted  the   UNCITRAL  Model  Law  on  International  Commercial   Arbitration. But at the same time, it has made some departures   from the model law. Section 11 is in the place of Article 11 of   the Model Law. The Model Law provides for the making of a   request  under  Article 11 to  "the  court  or  other  authority   specified in Article 6 to take the necessary measure". The words   in Section 11 of the Act, are "the Chief Justice or the person or   institution  designated  by  him".  The  fact  that  instead  of  the   court, the powers are conferred on the Chief Justice, has to be   appreciated in the context of the statute. 'Court' is defined in the   Act to be the principal civil court of original jurisdiction of the   district and includes the High Court in exercise of its ordinary   original civil jurisdiction. The principal civil court of original   jurisdiction is normally the District Court. The High Courts in   India exercising ordinary original civil jurisdiction are not too   many. So in most of the States the concerned court would be the   District  Court.   Obviously,  the  Parliament  did  not  want  to   confer the power on the District Court, to entertain a request   for  appointing  an  arbitrator  or  for  constituting  an  arbitral   tribunal  under  Section 11 of  the  Act.  It  has  to  be  noted  that   under Section 9 of the Act, the District Court or the High Court   exercising original jurisdiction, has the power to make interim   orders prior to, during or even post arbitration. It has also the   power to entertain a challenge to the award that may ultimately   

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be made. The framers of the statute must certainly be taken to   have been conscious of the definition of 'court' in the Act. It is   easily possible to contemplate that they did not want the power   under Section 11 to be conferred on the District Court or the   High  Court  exercising  original  jurisdiction.  The  intention   apparently  was  to  confer  the  power  on  the  highest  judicial   authority in the State and in the country, on Chief Justices of   High Courts and on the Chief Justice of India. Such a provision   is  necessarily  intended to  add the  greatest  credibility  to  the   arbitral process.  The argument that the power thus conferred   on the Chief Justice could not even be delegated to any other   Judge  of  the  High  Court  or  of  the  Supreme  Court,  stands   negatived   only  because  of  the  power  given  to  designate   another.  The intention of the legislature appears to be clear   that it wanted to ensure that the power under Section 11(6) of   the Act was exercised by the highest judicial authority in the   concerned State or in the country. This is to ensure the utmost   authority to the process of constituting the arbitral tribunal.

18. It is true that the power under Section 11(6) of the Act is   not conferred on the Supreme Court or on the High Court, but   it is conferred on the Chief Justice of India or the Chief Justice   of  the  High  Court.  One  possible  reason  for  specifying  the   authority as the Chief Justice, could be that if it were merely   the conferment of the power on the High Court, or the Supreme   Court, the matter would be governed by the normal procedure   of that Court, including the right of appeal and the Parliament   obviously  wanted  to  avoid  that  situation,  since  one  of  the   objects was to restrict the interference by Courts in the arbitral   process.  Therefore,  the  power  was  conferred  on  the  highest   judicial  authority  in  the  country  and  in  the  State  in  their   capacities  as  Chief  Justices.  They  have  been  conferred  the   power  or  the  right  to  pass  an  order  contemplated  by   Section 11 of  the  Act.  We  have  already  seen  that  it  is  not   possible to envisage that the power is conferred on the Chief   Justice as persona designata. Therefore, the fact that the power   is conferred on the Chief Justice, and not on the court presided   over  by  him  is  not  sufficient  to  hold  that  the  power  thus   conferred  is  merely  an  administrative  power  and  is  not  a   judicial power.”

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 It is obvious that Section 11 applications are not to be moved before the  

“court” as defined but before the Chief Justice either of the High Court or of  

the Supreme Court, as the case may be, or their delegates.  This is despite  

the fact that the Chief Justice or his delegate have now to decide judicially  

and not administratively. Again, Section 42 would not apply to applications  

made before the Chief Justice or his delegate for the simple reason that the  

Chief Justice or his delegate is not “court” as defined by Section 2(1)(e).  

The  said  view  was  reiterated  somewhat  differently  in  Pandey  &  Co.  

Builders (P) Ltd. v. State of Bihar & Anr., (2007) 1 SCC 467 at Paras 9,  

23-26.

17. That the Chief Justice does not represent the High Court or Supreme  

Court as the case may be is also clear from Section 11(10):

“The Chief  Justice  may make such scheme as he may deem   appropriate for dealing with matters entrusted by sub-section   (4) or sub-section(5) or sub-section (6) to him.”

The scheme referred to in this sub-section is a scheme by which the Chief  

Justice may provide for the procedure to be followed in cases dealt with by  

him under Section 11. This again shows that it is not the High Court or the  

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Supreme Court rules that are to be followed but a separate set of rules made  

by the Chief Justice for the purposes of Section 11.

Sub-section 12 of Section 11 reads as follows:

“(a) Where the matters referred to in sub-sections (4), (5),   (6),  (7),  (8)  and  (10)  arise  in  an  international  commercial   arbitration,  the  reference  to  ‘‘Chief  Justice''  in  those  sub- sections shall be construed as a reference to the ‘‘Chief Justice   of India''.

(b) Where the matters referred to in sub-sections (4), (5),   (6),  (7),  (8)  and  (10)  arise  in  any  other  arbitration,  the   reference  to  “Chief  Justice”  in  those  sub-sections  shall  be   construed as a reference to the Chief Justice of the High Court   within whose local limits the principal Civil Court referred to   in clause (e) of sub-section (1) of section 2 is situate and, where   the High Court itself is the Court referred to in that clause, to   the Chief Justice of that High Court.”

It is obvious that Section 11(12)(b) was necessitated in order that it be  

clear that the Chief Justice of “the High Court” will only be such Chief  

Justice within whose local limits the Principal Civil  Court referred to in  

Section 2(1)(e) is situate and the Chief Justice of that High Court which is  

referred to in the inclusive part of the definition contained in Section 2(1)

(e). This sub-section also does not in any manner make the Chief Justice or  

his designate “court” for the purpose of Section 42.   Again, the decision of  

the Chief Justice or his designate, not being the decision of the Supreme  

Court  or the High Court,  as the case may be, has no precedential  value  

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being a decision of a judicial authority which is not a Court of Record.   

18. In contrast with applications moved under Section 8 and 11 of  the  

Act, applications moved under Section 9 are to the “court” as defined for the  

passing of interim orders before or during arbitral proceedings or at any time  

after the making of the arbitral Award but before its enforcement.  In case an  

application is made, as has been made in the present case, before a particular  

court,  Section  42  will  apply  to  preclude  the  making  of  all  subsequent  

applications  under  Part-I  to  any  court  except  the  court  to  which  an  

application has been made under Section 9 of the Act.

19. One of the questions that arises in the reference order is whether the  

Supreme Court is a court within the meaning of Section 2(1)(e) of the Act.  

In two judgments under the 1940 Act, namely, State of Madhya Pradesh v.  

Saith  and  Skelton  (P)  Ltd.,  (1972)  1  SCC  702 and  Guru  Nanak  

Foundation v.  Rattan Singh & Sons,  (1981)  4 SCC 634,  the Supreme  

Court took the view that where an Arbitrator was appointed by the Supreme  

Court  itself  and  the  Supreme  Court  retained  seisin  over  the  arbitration  

proceedings, the Supreme Court would be “court” for the purpose of Section  

2(c)  of  the  1940 Act.   These  judgments  were  distinguished  in  National  

Aluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd. & Anr., (2004)  

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1 SCC 540, Bharat Coking Coal Limited v. Annapurna Construction,  

(2008) 6 SCC 732  and  Garhwal Mandal Vikas Nigam Ltd. v. Krishna  

Travel Agency, (2008) 6 SCC 741.   The first  of these judgments was a  

judgment under the 1996 Act wherein it was held that when the Supreme  

Court appoints an Arbitrator but does not retain seisin over the proceedings,  

the Supreme Court will not be “court” within the meaning of Section 2(1)(e)  

of the Act.  Similar is the position in the third judgment, the Garhwal case.  

Even under the 1940 Act, in Bharat Coking Coal, the same distinction was  

made and it was held that as the Supreme Court did not retain seisin over the  

proceedings after appointing an Arbitrator, the Supreme Court would not be  

“court” within the meaning of the Arbitration Act, 1940.   

20. As  noted  above,  the  definition  of  “court”  in  Section  2(1)(e)  is  

materially different  from its  predecessor  contained in Section 2(c)  of  the  

1940 Act.   There are a variety of  reasons as to why the Supreme Court  

cannot possibly be considered to be “court” within the meaning of Section  

2(1)(e)  even if  it  retains  seisin  over  the  arbitral  proceedings.   Firstly,  as  

noted above,  the definition is exhaustive and recognizes only one of two  

possible  courts  that  could  be  “court”  for  the  purpose  of  Section  2(1)(e).  

Secondly, under the 1940 Act, the expression “civil court” has been held to  

be wide enough to include an appellate court and, therefore would include  

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the Supreme Court as was held in the two judgments aforementioned under  

the 1940 Act.  Even though this proposition itself is open to doubt, as the  

Supreme Court exercising jurisdiction under Article 136 is not an ordinary  

Appellate Court, suffice it to say that even this reason does not obtain under  

the present definition, which speaks of either the Principal Civil Court or the  

High Court exercising original jurisdiction.  Thirdly, if an application would  

have  to  be  preferred  to  the  Supreme  Court  directly,  the  appeal  that  is  

available  so  far  as  applications  under  Sections  9  and  34  are  concerned,  

provided for  under Section 37 of  the Act,  would not  be available.   Any  

further appeal to the Supreme Court under Article 136 would also not be  

available. The only other argument that could possibly be made is that all  

definition sections are subject to context  to the contrary.  The context of  

Section 42 does not in any manner lead to a conclusion that the word “court”  

in Section 42 should be construed otherwise than as defined.  The context of  

Section 42 is merely to see that one court alone shall have jurisdiction over  

all applications with respect to arbitration agreements which context does  

not in any manner enable the Supreme Court to become a “court” within the  

meaning  of  Section  42.   It  has  aptly  been  stated  that  the  rule  of  forum  

conveniens is expressly excluded by section 42.  See:  JSW Steel  Ltd.  vs.  

Jindal Praxair Oxygen Co.Ltd., (2006) 11 SCC 521 at para 59. Section 42 is  

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also  markedly  different  from Section  31(4)  of  the  1940  Act  in  that  the  

expression “has been made in a court competent to entertain it” does not find  

place in Section 42.  This is for the reason that, under Section 2(1)(e), the  

competent  Court  is  fixed as the Principal  Civil  Court  exercising original  

jurisdiction or  a  High Court  exercising original  civil  jurisdiction,  and no  

other court. For all these reasons, we hold that the decisions under the 1940  

Act would not obtain under the 1996 Act, and the Supreme Court cannot be  

“court” for the purposes of Section 42.  

21. One other question that may arise is as to whether Section 42 applies  

after the arbitral proceedings come to an end.  It has already been held by us  

that the expression “with respect to an arbitration agreement” are words of  

wide import and would take in all applications made before during or after  

the arbitral proceedings are over.  In an earlier judgment, Kumbha Mawji v.  

Dominion of India, (1953) SCR 878, the question which arose before the  

Supreme Court  was whether  the expression used in Section 31(4) of  the  

1940 Act “in any reference” would include matters that are after the arbitral  

proceedings are over and have culminated in an award.  It was held that the  

words  “in  any  reference”  cannot  be  taken  to  mean  “in  the  course  of  a  

reference”, but mean “in the matter of a reference” and that such phrase is  

wide enough and  comprehensive enough to cover an application made after  

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the arbitration is completed and the final Award is made. (See Paras 891-  

893). As has been noticed above, the expression used in Section 42 is wider  

being “with respect to an arbitration agreement” and would certainly include  

such applications.  

22. One more question that may arise under Section 42 is whether Section  

42 would apply in cases where an application made in a court is found to be  

without jurisdiction.  Under Section 31(4) of the old Act, it has been held in  

FCI represented by Managing Director & Anr. v. A.M. Ahmed & Co.,  

through MD & Anr., (2001) 10 SCC 532 at para 6   and Neycer India Ltd.  

v. GNB Ceramics Ltd., (2002) 9 SCC 489 at para 3 that Section 31(4) of  

the 1940 Act would not be applicable if it were found that an application  

was to be made before a court which had no jurisdiction.  In Jatinder Nath  

v. Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at para 9 and  

Rajasthan State Electrical Board v. Universal Petrol Chemical Limited,  

(2009) 3 SCC 107 at paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian  

Oil Corporation, 2013 (9) SCC 32 at para 32,  it was held that where the  

agreement between the parties restricted jurisdiction to only one particular  

court, that court alone would have jurisdiction as neither Section 31(4) nor  

Section 42 contains a non-obstante clause wiping out a contrary agreement  

between the parties.   It  has thus been held that  applications preferred to  

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courts outside the exclusive court agreed to by parties would also be without  

jurisdiction.   

23. Even under Section 42 itself, a Designated Judge has held in  HBM  

Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009) 17 SCC 338, that where  

the Chief Justice has no jurisdiction under Section 11, Section 42 will not  

apply.  This is quite apart from the fact that Section 42, as has been held  

above, will not apply to Section 11 applications at all.   

24. If  an  application  were  to  be  preferred  to  a  Court  which  is  not  a  

Principal Civil Court of original jurisdiction in a district, or a High Court  

exercising  original  jurisdiction  to  decide  questions  forming  the  subject  

matter of an arbitration if the same had been the subject matter of a suit, then  

obviously such application would be outside the four corners of Section 42.  

If,  for  example,  an  application  were  to  be  filed  in  a  court  inferior  to  a  

Principal Civil Court, or to a High Court which has no original jurisdiction,  

or if an application were to be made to a court which has no subject matter  

jurisdiction, such application would be outside Section 42 and would not  

debar subsequent applications from being filed in a court other than such  

court.  

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25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the  

Arbitration Act, 1996 are as follows:

(a) Section  2(1)(e)  contains  an  exhaustive  definition marking out  only  

the Principal Civil Court of original jurisdiction in a district or a High Court  

having original civil jurisdiction in the State, and no other court as “court”  

for the purpose of Part-I of the Arbitration Act, 1996.   

(b) The expression “with respect to an arbitration agreement” makes it  

clear that Section 42 will apply to all applications made whether before or  

during arbitral proceedings or after an Award is pronounced under Part-I of  

the 1996 Act.  

(c) However, Section 42 only applies to applications made under Part-I if  

they are made to a court as defined.  Since applications made under Section  

8 are made to judicial authorities and since applications under Section 11 are  

made to the Chief  Justice or his designate,  the judicial  authority and the  

Chief Justice or his designate not being court as defined, such applications  

would be outside Section 42.   

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(d) Section 9 applications being applications made to a court and Section  

34 applications to set aside arbitral awards are applications which are within  

Section 42.

(e) In  no  circumstances  can  the  Supreme  Court  be  “court”  for  the  

purposes of Section 2(1)(e), and whether the Supreme Court does or does  

not retain seisin after appointing an Arbitrator, applications will follow the  

first application made before either a High Court having original jurisdiction  

in the State or a Principal Civil  court having original jurisdiction in  the  

district as the case may be.   

(f) Section  42  will  apply  to  applications  made  after  the  arbitral  

proceedings have come to an end provided they are made under Part-I.

(g) If a first application is made to a court which is neither a Principal  

Court of original jurisdiction in a district or a High Court exercising original  

jurisdiction in a State, such application not being to a court as defined would  

be outside Section 42. Also, an application made to a court without subject  

matter jurisdiction would be outside Section 42.   

The reference is answered accordingly.

26. On the facts of the present case, nothing has been shown as to how the  

High Court of Calcutta does not possess jurisdiction.  It has been mentioned  

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above that leave under Clause 12 has been granted.  In the circumstances of  

the present case, therefore, the judgment dated 11th April, 2005 passed by the  

High Court of Calcutta is correct and does not need any interference. Civil  

Appeal  No.6691/2005  and  Civil  Appeal  No.4808/2013  are  hereby  

dismissed.  

..............................................CJI (R.M. Lodha)

………………………………..J. (Kurian Joseph)

………………………………..J. (R.F. Nariman)

New Delhi, September 10, 2014

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